FILED APISTRICT OF NEBRASKAM

IN THE UNITED STATES DISTRICT COUR APR 2 g 2003

FOR THE DISTRICT OF NEBRASKA Gary 0. McFarland, Clerk ; By Deputy.

LANCE DAVIS and MICHELLE DAVIS, ) )

Plaintiffs, ) )

vs. ) )

THOMSON MULTIMEDIA, f/k/a ) THOMSON CONSUMER ELECTRONICS, ) a Delaware corporation, · )

) Defendant. )

4:01CV3159

FINAL JURY INSTRUCTIONS

INSTRUCTION NO. 1

Members of the jury, the instructions I gave at the beginning of the trial and

during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as

well as those I give you now. You must not single out some instructions and ignore

others, because all are important. This is true even though some of those I gave you

at the beginning of and during the trial are not repeated here.

INSTRUCTION NO. 2

Neither in these instructions nor in any ruling, action or remark that I have

made during the course of this trial have I intended to give any opinion or suggestion

as to what your verdict should be.

During this trial I may have occasionally asked questions of witnesses in order

to bring out facts not then fully covered in the testimony. Do not assume that I hold

any opinion on the matters to which my questions related.

INSTRUCTION NO. 3

You are reminded that you are not to engage in any independent investigation

of this case. For instance, you are not to consult a dictionary or any other like

reference.

INSTRUCTION NO. 4

In these instructions you are told that your verdict depends on whether you find

certain facts have been proved. The burden of proving a fact is upon the party whose

claim or defense depends upon that fact. The party who has the burden of proving

a fact must prove it by the greater weight ofthe evidence. To prove something by the

greater weight of the evidence is to prove that it is more likely true than not true. It

is determined by considering all ofthe evidence and deciding which evidence is more

believable. If, on any issue in the case, the evidence is equally balanced, you must

resolve that issue against the party who has the burden of proving it.

The greater weight of the evidence is not necessarily determined by the greater

number of witnesses or exhibits a party has presented.

INSTRUCTION NO. 5

A witness who has special knowledge, skill, experience, training, or education

in a particular area may testify as an expert in that area. You determine what weight,

if any, to give to an expert's testimony just as you do with the testimony of any other

witness. You should consider the expert's credibility as a witness, the expert's

qualifications as an expert, the sources of the expert's information, and the reasons

given for any opinions expressed by the expert.

INSTRUCTION NO. 6

I. PLAINTIFFS' CLAIM

A. Issues

This case involves a fire that occurred on June 13, 1999, at the plaintiffs

residence, located at 5485 South Prosser Avenue in Roseland, Nebraska. The

plaintiffs claim that the fire was caused by an RCA video cassette recorder (VCR)

that was manufactured, designed and marketed by the defendant, and that the VCR

contained manufacturing and design defects. The plaintiffs claim to have suffered

damages as a result of the alleged defects in the VCR, and they seek a judgment

against the defendant for their damages.

The defendant admits that it manufactured, designed and marketed the VCR,

but denies that the product was defective or a cause of the fire. The defendant admits

that the plaintiffs suffered fire damage to their residence and to some of their personal

belongings, but disputes the amount of damages claimed by the plaintiffs. Finally,

the defendant claims that the design of the VCR conformed to the prevailing state of

the art.

B. Burden of Proof

Before the plaintiffs can recover against the defendant on this claim, the

plaintiffs must prove, by the greater weight of the evidence, each and all of the

following:

1. That the defendants placed the VCR on the market;

2. That, at the time the VCR left the defendant's possession, it was

defective in one or more of the ways claimed by the plaintiffs, namely, that the VCR

contained a design defect or a manufacturing defect;

3. That this defect made the VCR unreasonably dangerous for its intended

use, or for any use the defendant could have reasonably foreseen;

4. That this defect was a proximate cause of some damage to the plaintiffs;

and

5. The nature and extent of that damage.

C. Effect of Findings

If the plaintiffs have not met this burden of proof, then your verdict must be for

the defendant.

On the other hand, if the plaintiffs have met this burden of proof, then you must

consider the defendant's defense.

II. DEFENDANT'S DEFENSE

A. Issues

In defense of the plaintiffs' claim that the VCR contained a design defect, the

defendant claims that the VCR conformed with the state ofthe art. This defense does

not apply to the plaintiffs' claim that the VCR contained a manufacturing defect.

B. Burden of Proof

In connection with this defense, the burden is on the defendant to prove, by the

greater weight of the evidence, that the design of the VCR conformed to the generally

recognized and prevailing state of the art in the industry in 1997.

"State of the art" means the best technology reasonably available at the time.

C. Effect of Findings

If the defendant has met this burden of proof, then your verdict must be for the

defendant unless you find that the VCR contained a manufacturing defect, in which

case your verdict must be for the plaintiffs if they have proved each and every

element of their claim (as described in section I.B above).

If the defendant has not met this burden of proof, then you must disregard this

"state of the art" defense.

INSTRUCTION NO. 7

A product is defective in its manufacture if it differs from the manufacturer's

intended result or if it differs from apparently identical products from the same

manufacturer.

INSTRUCTION NO. 8

A product is defective in its design if it fails to perform as safely as an ordinary

consumer would expect when it is used in a manner either intended by the

manufacturer or reasonably foreseeable by the manufacturer.

INSTRUCTION NO. 9

A product is unreasonably dangerous if it creates a risk of harm beyond that

which would be contemplated by the ordinary foreseeable user.

INSTRUCTION NO. 10

A proximate cause is a cause that produces a result in a natural and continuous

sequence, and without which the result would not have occurred.

INSTRUCTION NO. 11

After the fire, the plaintiffs preserved the VCR for use at trial. However, they

did not preserve other appliances and artifacts (such as the TV, satellite box, lamp and

power cords) for examination by the defendant or for presentation as evidence in this

trial.

Regarding the appliances and artifacts that the plaintiffs failed to preserve, I

instruct you that you should not discount the testimony of the defendant's experts

because they did not examine or test the appliances or artifacts that the plaintiffs

failed to preserve. On the contrary, the plaintiffs must establish by the greater weight

of the evidence that their alleged damage was not solely the result of the TV, satellite

box, lamp or power cords.

INSTRUCTION NO. 12

You may not consider the presence of insurance on the plaintiffs' property in

your determination of whether the plaintiffs have met their burden of proof. If you

return a verdict for the plaintiffs, you may consider the amount for which the

plaintiffs' property was insured only as it relates to your determination of the market

value of the plaintiffs' property before it was damaged. You may not consider

whether insurance has compensated the plaintiffs for their injury.

INSTRUCTION NO. 13

If you return a verdict for the plaintiffs, then you must decide how much money

will fairly compensate the plaintiffs for their injury. They are entitled to recover the

market value of their property before it was damaged, minus its market value after it

was damaged.

Remember, throughout your deliberations, you must not engage in any

speculation, guess or conjecture and you must not award any damages by way of

punishment or through sympathy.

INSTRUCTION NO. 14

Your verdict must be agreed to by all eight of you, that is, it must be

unammous.

INSTRUCTION NO. 15

In conducting your deliberations and returning your verdict, there are certain

rules you must follow.

First, when you go to the jury room, you must select one of your members as

your foreperson. That person will preside over your discussions and speak for you

here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the

jury room. You should try to reach agreement if you can do so without violence to

individual judgment.

Each of you must make your own conscientious decision, but only after you

have considered all the evidence, discussed it fully with your fellow jurors, and

listened to the views of your fellow jurors.

Do not be afraid to change your opinions if the discussion persuades you that

you should. But do not come to a decision simply because other jurors think it is

right, or simply to reach a verdict. Remember at all times that you are not partisans.

You are judges -judges of the facts. Your sole interest is to seek the truth from the

evidence in the case.

Third, if you need to communicate with me during your deliberations, you may

send a note to me through the marshal or bailiff, signed by one or more jurors. You

may reach my chambers by pressing the "call" button on the intercom telephone in

the jury room. The caller should clearly identify himself or herself as a member of

the jury so that my staff will react accordingly. I will respond as soon as possible

either in writing or orally in open court. Remember that you should not tell anyone

- including me - how your votes stand numerically.

If you do not agree on a verdict by 5:00 o'clock p.m., you may separate and

return for deliberation at 9:00 o'clock a.m. on the next business day. You may

deliberate after 5:00 o'clock p.m. but if so, please advise the bailiff of your intention

to do so. You may also separate for meals during the course of your deliberations,

but if you do separate for meals please contact the bailiff to advise her of your

intention to separate and when you expect to return to the jury room to reconvene

your deliberations. If you do separate, then during that time, you are not allowed to

discuss this case with anyone, even another juror.

Fourth, your verdict must be based solely on the evidence and law which I have

given to you in my instructions. Nothing I have said or done is intended to suggest

what your verdict should be - that is entirely for you to decide.

Finally. the verdict form is simply the written notice of the decision that you

reach in this case. You will take this form to the jury room, complete it pursuant to

the instructions on the form, and advise the marshal or bailiff when you are ready to

deliver your verdict.

Submitted at ---=3_.:'--'z-'---L'f ___ o'clock a.m. I{£) DATED this £l'""day of_JAL..:..¥f>""'R-'-; '-I ____ , 2003.

BY THE COURT:

'chard G. Kopf United States District Judge

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

LANCE DAVIS and MICHELLE DAVIS,

Plaintiffs,

vs.

THOMSON MULTIMEDIA, f/k/a THOMSON CONSUMER ELECTRONICS, a Delaware corporation,

Defendant.

) ) ) ) ) ) ) ) ) ) )

4:01CV3159

VERDICT FORM

Please answer the following questions in accordance with the jury instructions

and the instructions contained in this form. It is possible that you will answer some

but not all questions.

VERDICT

I. Liability

As to the plaintiffs' claim, find one of the following: (Place an "X" beside one, but only one, of the two statements.)

A. Verdict in favor of Plaintiffs Lance and Michelle Davis, and against Defendant Thomson Multimedia.

B. Verdict in favor of Defendant Thomson Multimedia, and against Plaintiffs Lance and Michelle Davis.

Davis v. Thomson Multimedia, 4:01CV3159 Verdict Form, Page 2

II. Damages

Note: Complete the following statement ONLY if you have found in favor of Plaintiffs and against Defendant.

We find Plaintiffs' damages to be: $. __________ (stating the amount).

EXECUTION OF VERDICT FORM

Note: The Foreperson shall sign and date the verdict form, and such signature shall mean that the verdict of the jury was unanimous.

DATED this ___ day of ____________ , 2003.

FOREPERSON

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